Update on State v. Clark: U.S. Supreme Court Bound?

On October 2, 2014, the U.S. Supreme Court granted cert. in Ohio v. Clark. 13-1352.

On October 30, 2013, the Supreme Court of Ohio handed down a merit decision in State v. Clark, 2013-Ohio-4731. In a 4-3 decision written by Justice O’Donnell, for himself and Justices Pfeifer, Kennedy and O’Neill, the Court held that a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify. You can read the analysis of the merit decision here. Now the state is trying to get the case into the U.S. Supreme Court.

Case Syllabus

1. At a minimum, when questioning a child about suspected abuse in furtherance of a duty pursuant to R.C. 2151.421, a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.

2. Statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are testimonial in nature in accordance with Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and State v.Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534.

Case Background

This case involves a statement made by then three-year-old L.P. to his preschool teachers about bruising on his face. The statement implicated Clark, his mother’s boyfriend. As a person required by law to report suspected child abuse, the lead teacher contacted the authorities, and Clark was ultimately arrested, charged, and convicted of numerous counts of child endangerment, felonious assault and domestic violence.

The trial court found L.P. incompetent to testify. At issue before the Supreme Court of Ohio was the admissibility of L.P’s statement implicating Clark through the testimony of his teachers. The key disagreement between the dissenters and the majority in this case is over the test to be applied to the statement.

Majority Position

The majority found L.P.’s statement improperly admitted through his teachers. In doing so, the majority applied the primary purpose test, because when questioning a child about suspected abuse, teachers acts in a dual capacity-as instructors and, because of their duty to report abuse, as agents of the state for law enforcement purposes. The majority held that the primary purpose of the questioning was to gather evidence for a subsequent criminal prosecution. Thus, the statement L.P. made to his teachers was testimonial, and its admission violated Clark’s rights under the Confrontation Clause.

The Dissent

Chief Justice O’Connor wrote a very heated dissent in this case, joined by Justices Lanzinger and French. She began her dissent as follows:

“The majority decision creates confusion in our case law, eviscerates Evid.R. 807, and threatens the safety of our children. Not surprisingly, it is also wrong as a matter of federal constitutional law.”

Chief Justice O’Connor emphatically disagreed that teachers become agents of law enforcement merely because they are required to report child abuse. She believes the objective witness test, adopted by the Court in 2006 in State v. Stahl, applies when the questioner is not an agent of law enforcement. Under that test, she would find the statement non-testimonial because “no objective witness could reasonably believe the interviews served a prosecutorial purpose rather than a protective one.” Thus the child’s statement to his teachers was nontestimonial, and its admission did not violate the defendant’s rights under the Confrontation Clause.

Chief Justice O’Connor noted in her dissent that the determination of whether statements are testimonial when made to someone other than law enforcement personnel is an open question under federal law. She noted that the U.S. Supreme Court—which has an extensive, developing body of precedent on Confrontation clause issues—has not decided whether the mandatory duty to report turns a civilian reporter into a law enforcement agent for purposes of the Confrontation clause. By the end of her dissent, she invited the state to take this question up to the U.S. Supreme Court.

And now it has.

State’s Cert. Petition

On May 8, 2014, the state filed a petition for a writ of certiorari in this case. Here are the questions presented:

“In all fifty States, certain individuals—most often, teachers, social workers, and medical professionals— have a mandatory duty to report suspected child abuse that they notice in the course of their work. In this case, the Ohio Supreme Court held both that this mandatory-reporting duty turned day care teachers into “agents of the state for law enforcement purposes” and that a child’s out-of-court statements to the teachers qualified as “testimonial” under the Confrontation Clause. It did so even though there was no police involvement in the encounter between the teachers and child. Several other state supreme courts, by contrast, have rejected arguments that these mandatory-reporting statutes turn an individual subject to them into “law enforcement,” and have held instead that a child’s statements to the individual were non-testimonial and thus not subject to the Confrontation Clause.

The two specific questions presented are:

Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?

Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?

The state has been joined by several amici. You can access those on SCOTUSblog. On July 1, 2014, Clark filed a brief in opposition to the state’s petition. A decision on the cert. petition is expected by late fall. Stay tuned.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.